Sellers v. Reefer Systems , 305 Neb. 868 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/29/2020 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
William Sellers, appellee, v.
Reefer Systems, Inc., appellant.
___ N.W.2d ___
Filed May 22, 2020. No. S-19-082.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
2. Judgments: Statutes: Rules of the Supreme Court: Appeal and
Error. Because Nebraska Supreme Court rules are construed in the
same manner as statutes, an appellate court does so independently of the
conclusion of the lower court.
3. Attorney Fees: Appeal and Error. A court’s decision awarding or
denying attorney fees will be upheld absent an abuse of discretion.
4. Attorney Fees: Statutes: Rules of the Supreme Court: Affidavits:
Appeal and Error. In order to recover statutory “reasonable” attor-
ney fees under Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018), the
details of the attorney-client agreement is not a necessary component of
the affidavit submitted pursuant to Neb. Ct. R. App. P. § 2-109(F) (rev.
2014) for justification of appellate attorney fees.
5. Statutes: Legislature: Intent. The intent of the Legislature may be
found through its omission of words from a statute as well as its inclu-
sion of words in a statute, and courts are not permitted to read addi-
tional words into a clear and unambiguous statute.
6. Workers’ Compensation: Attorney Fees. When Neb. Rev.
Stat. § 48-125(4)(b) (Cum. Supp. 2018) of the Nebraska Workers’
Compensation Act does not specify that reasonable attorney fees must
have been “incurred,” it is improper for a court to add it.
7. Workers’ Compensation. The Nebraska Workers’ Compensation Act
should be construed liberally to carry out its spirit and beneficent pur-
pose of providing compensation to employees injured on the job.
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
8. Attorney Fees: Legislature: Public Policy. The Legislature determined
as a matter of public policy that the “reasonable attorney’s fee” man-
dated by Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) does not
depend on the terms of any fee agreement.
9. Attorney Fees. Statutory “reasonable” attorney fees taxed as costs do
not go directly to the attorney.
10. ____. In order to determine proper and reasonable attorney fees, a court
considers several factors, including the nature of the litigation, the time
and labor required, the novelty and difficulty of the questions raised, the
skill required to properly conduct the case, the responsibility assumed,
the care and diligence exhibited, the result of the suit, the character and
standing of the attorney, the customary charges of the bar for similar
services, and the general equities of the case.
Petition for further review from the Court of Appeals,
Riedmann, Bishop, and Arterburn, Judges, on appeal
thereto from the Workers’ Compensation Court, J. Michael
Fitzgerald, Judge. Judgment of Court of Appeals reversed
and remanded with directions.
Tanya J. Hansen, of Smith, Johnson, Allen, Connick &
Hansen, for appellant.
Joel D. Nelson, of Keating, O’Gara, Nedved & Peter, P.C.,
L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In an appeal of a workers’ compensation case, wherein the
award to the employee was affirmed, the Nebraska Court of
Appeals denied the employee’s motion for attorney fees for his
counsel’s appellate work, despite the statutory mandate under
Neb. Rev. Stat. § 48-125(4)(b) (Cum. Supp. 2018) that reason-
able attorney fees shall be allowed to the employee by the
appellate court if the employer files an appeal from a workers’
compensation award and fails to obtain any reduction in the
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305 Nebraska Reports
SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
amount of such award. We hold that the affidavit submitted
by the employee’s attorney, which mentioned a contingency
fee agreement, presented the total number of hours worked
on the appeal with a couple of examples of tasks performed,
set forth an hourly rate, averred that the total hours claimed
were calculated from business records itemizing the same, and
averred in the attorney’s expert opinion that the hours and rate
were reasonable, sufficiently justifies under Neb. Ct. R. App.
P. § 2-109(F) (rev. 2014) reasonable attorney fees to which the
employee has a statutory right. We reverse the judgment and
remand the matter to the Court of Appeals to determine the
amount of the fee.
BACKGROUND
William Sellers was injured while working for Reefer
Systems, Inc., in 2007. In 2019, the Workers’ Compensation
Court awarded him permanent total disability benefits. Reefer
Systems appealed the award to the Court of Appeals. The
Court of Appeals affirmed the award in all respects in a memo-
randum opinion issued on October 8, 2019. 1
Sellers timely filed a motion in the Court of Appeals for an
award of reasonable attorney fees pursuant to § 48-125(4)(b)
for the reason that the employer appealed the trial court deci-
sion and there was no reduction in the amount of the award
on appeal.
Attached to the motion is the affidavit of Sellers’ counsel
who worked on the appeal. Counsel avers that he spent 37.8
hours in total on the appeal, beginning April 18, 2019, and end-
ing May 7, and opines that was “a reasonable amount of time
for the work involved.” Counsel describes that he has been
an attorney since 1997 and that since 1999, a substantial por-
tion of his practice has been workers’ compensation cases. He
avers that his hourly rate ranges from $140 to $245 per hour,
that he is generally familiar with hourly rates charged by other
1
Sellers v. Reefer Systems, No. A-19-082, 2019 WL 4940200 (Neb. App.
Oct. 8, 2019) (selected for posting to court website).
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
litigation attorneys in this geographic area, and that an hourly
rate of $200 per hour for his work on Sellers’ appeal would
be reasonable and consistent with fees charged in this area for
attorneys of similar background and skill.
Counsel avers, further, that he derived the number of hours
spent on the appeal from an audit of records maintained by his
law firm’s staff and himself, consistent with their regular and
established business practices. He notes that the audit revealed
its first entry on April 18, 2019, as reviewing the bill of excep-
tions, and, as its last entry, revising Sellers’ brief. The hours
assigned to these particular tasks is not set forth. No other
tasks are specifically delineated. The referenced records were
not attached to the affidavit. Counsel notes in the affidavit that
he represented Sellers “on a contingent fee.” The details of that
arrangement are not otherwise described.
The Court of Appeals denied the motion for attorney fees
on the ground that counsel’s affidavit did not provide suffi-
cient information to justify the reasonableness of the attorney
fees sought. The Court of Appeals issued the following minute
entry:
[Sellers’] motion for attorney fees denied. Affidavit
fails to justify amount of attorney fees sought. See Neb.
Ct. R. App. P. § 2-109(F). See also St. John v. Gering
Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019) (in
seeking attorney fee[s], lawyer has burden of proving not
only extent and value of services provided, but also exis-
tence and terms of fee contract).
We granted Sellers’ petition for further review of this order
of the Court of Appeals which overruled his motion for attor-
ney fees.
ASSIGNMENTS OF ERRORS
Sellers assigns that the Court of Appeals erred in (1) over-
ruling Sellers’ motion for statutory attorney fees and (2) impos-
ing a burden of proof regarding attorney fees derived from fee
disputes between attorneys or between an attorney and client.
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 2
[2] Because Nebraska Supreme Court rules are construed in
the same manner as statutes, an appellate court does so inde-
pendently of the conclusion of the lower court. 3
[3] A court’s decision awarding or denying attorney fees will
be upheld absent an abuse of discretion. 4
ANALYSIS
Section 48-125(4)(b) provides for mandatory attorney fees
for appellate work in circumstances where the employer appeals
and fails to obtain any reduction in the award:
If the employer files an appeal from an award of a judge
of the compensation court and fails to obtain any reduc-
tion in the amount of such award, the Court of Appeals
or Supreme Court shall allow the employee a reasonable
attorney’s fee to be taxed as costs against the employer
for such appeal.
(Emphasis supplied.)
Section 2-109(F) of the Supreme Court rules sets forth the
general procedure by which an employee must request the
attorney fees allowable under § 48-125(4), 5 inasmuch as it sets
forth the procedure for any litigant seeking from our appellate
courts attorney fees to which there is a right under law or cus-
tom. Section 2-109(F) provides in relevant part:
Any person who claims the right under the law or a uni-
form course of practice to an attorney fee in a civil case
appealed to the Supreme Court or the Court of Appeals
2
Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
3
See Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
4
See State ex. Rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606,
924 N.W.2d 664 (2019).
5
See Escobar v. JBS USA, 25 Neb. Ct. App. 527, 909 N.W.2d 373 (2018).
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must file a motion for the allowance of such a fee sup-
ported by an affidavit which justifies the amount of the fee
sought for services in the appellate court.
(Emphasis supplied.) Sellers’ motion for attorney fees pursuant
to § 48-125(4)(b) was timely under § 2-109(F), but the parties
dispute whether the supporting affidavit adequately justifies
“reasonable” attorney fees.
In denying Sellers’ motion, the Court of Appeals concluded
that the affidavit submitted under § 2-109(F) was inadequate
because it did not provide the details of the fee agreement
between Sellers and his attorney. This was in error. We have
never held that in order to recover statutory “reasonable”
attorney fees, the attorney must submit the details of the
attorney-client agreement. Neither is such evidence specified in
§ 2-109(F) as a necessary component to the justification of an
appellate attorney fees.
We have affirmed allowances of statutory attorney fees for
trial work despite a lack of proof as to any fee agreement. In
Dale Electronics, Inc. v. Federal Ins. Co., 6 we held under a
statute setting forth the right to “reasonable” attorney fees that
the attorney-fee allowance for the work of in-house counsel
should be for the time actually engaged in the work to the same
extent as outside counsel; evidence of counsel’s annual salary
was not required. And in Black v. Brooks, 7 we affirmed the
lower court’s award of statutory “reasonable attorney’s fees” 8
to which the successful tenant was entitled under Nebraska’s
Uniform Residential Landlord and Tenant Act (URLTA), 9 even
though the tenant was represented on a pro bono basis without
any provision under the agreement for payment to the attorney
in the event of an award of statutory fees.
6
See Dale Electronics, Inc. v. Federal Ins. Co., 205 Neb. 115, 286 N.W.2d
437 (1979).
7
Black v. Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).
8
Neb. Rev. Stat. § 76-1425(2) (Reissue 2009).
9
Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2009).
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In Black, we indicated that the tenant “need only present
some evidence to the trial court upon which the court can make
a meaningful award.” 10 We observed, “We have never said a
fee agreement or any other agreement showing an obligation of
the client to pay the attorney fees to the attorney is part of the
proof that must be proffered in order to support an award of
statutory attorney fees.” 11
We reasoned in Black that the amount of the statutory
attorney fees under URLTA is not directly tied by the statute
to the amount due under a fee agreement and that the public
policy goals of encouraging compliance with laws serving
the public interest and encouraging settlements are effectively
furthered only when the statutory attorney fees under URLTA
are awarded for fee-based and pro bono work alike. A land-
lord who violates URLTA should not “reap the benefits of free
representation to the other party.” 12 There was nothing in the
statutory language of “reasonable attorney’s fees” in URLTA
that made the recovery of such fees dependent upon a billing
obligation, and we held it would be improper to insert the addi-
tional term “incurred” into the statute. 13
[4-6] We now hold that in order to recover statutory “rea-
sonable” attorney fees under § 48-125(4)(b), the details of the
attorney-client agreement is not a necessary component of the
affidavit submitted pursuant to § 2-109(F) for justification of
appellate attorney fees. The intent of the Legislature may be
found through its omission of words from a statute as well as
its inclusion of words in a statute, and we are not permitted to
read additional words into a clear and unambiguous statute. 14
Several attorney fee statutes, such as the one recently addressed
10
Black, supra note 7, 285 Neb. at 451, 827 N.W.2d at 264.
11
Id.
12
Id. at 454, 827 N.W.2d at 266.
13
See Black, supra note 7.
14
See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).
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SELLERS v. REEFER SYSTEMS
Cite as 305 Neb. 868
in TransCanada Keystone Pipeline v. Nicholas Family, 15 spec-
ify that to be recoverable, the reasonable attorney fees must
have been “incurred.” 16 When § 48-125(4)(b) of the Nebraska
Workers’ Compensation Act does not specify that reasonable
attorney fees must have been “incurred,” it is improper for us
to add it.
[7,8] We have repeatedly said that the Nebraska Workers’
Compensation Act should be construed liberally to carry out
its spirit and beneficent purpose of providing compensation
to employees injured on the job. 17 It is apparent that the
Legislature determined as a matter of public policy that the
“reasonable attorney’s fee” mandated by § 48-125(4)(b) does
not depend on the terms of any fee agreement. Thus, the affi-
davit submitted under § 2-109(F) in support of attorney fees
pursuant to § 48-125(4)(b) does not need to set forth the exis-
tence and terms of a fee contract between the employee and the
attorney in order to “justify” statutorily mandated “reasonable”
attorney fees for the appeal.
The Court of Appeals’ reliance on St. John v. Gering Public
Schools 18 to conclude otherwise is misplaced. St. John did not
involve attorney fees taxed as costs under a statute or custom.
Instead, it involved the question of the attorneys’ entitlement
under their attorneys’ liens for services rendered pursuant to
their fee agreements. In an analysis centered around the profes-
sional responsibility rules, we held that “while a lawyer with a
valid fee agreement is entitled to recover from a client what a
15
TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908
N.W.2d 60 (2018).
16
See, e.g., Neb. Rev. Stat. § 1-148 (Reissue 2012); Neb. Rev. Stat. § 21-281
(Cum. Supp. 2018); Neb. Rev. Stat. § 30-4020 (Supp. 2019); Neb. Rev.
Stat. § 50-1515 (Cum. Supp. 2018); Neb. Rev. Stat. § 53-223 (Reissue
2010); Neb. Rev. Stat. § 76-726 (Reissue 2018); Neb. Rev. Stat. § 81-3537
(Reissue 2014); Neb. Rev. Stat. § 85-1510 (Reissue 2014).
17
Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d
851 (2019). See Neb. Rev. Stat. § 48-101 (Reissue 2010).
18
St. John v. Gering Public Schools, 302 Neb. 269, 923 N.W.2d 68 (2019).
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fee agreement allows to the extent that amount is reasonable,
a lawyer is not entitled to recover from a client more than a
fee agreement allows.” 19 Neb. R. of Prof. Cond. § 3-501.5
provides in part that “[a] lawyer shall not make an agreement
for, charge, or collect an unreasonable fee or an unreasonable
amount for expenses.”
In so holding in St. John, we cited to Hauptman, O’Brien v.
Turco 20 for the proposition which states:
In a suit to recover an unpaid fee, “the lawyer has the
burden of persuading the trier of fact, when relevant, of
the existence and terms of any fee contract, the making
of any disclosures to the client required to render a con-
tract enforceable, and the extent and value of the lawyer’s
services.”
Like St. John, Hauptman, O’Brien did not involve statutory
“reasonable” attorney fees to be taxed as costs in favor of the
litigant-client. It was an action to enforce an attorney lien in an
amount computed in accordance with the contingent fee agree-
ment. The client asserted that recovery under the contingent
fee agreement was excessive for the amount of work actually
done, and we held that because the law firm failed to present
any evidence in support of its motion for summary judgment
as to the “extent and value of the professional services which
it performed” during the period of its representation, there
was “no factual basis upon which to determine whether or
not the claimed fee computed pursuant to the contingent fee
agreement is reasonable.” 21 This was because collection by the
attorney of attorney fees computed pursuant to a contingent
fee agreement is still subject to the ethical principle embodied
in § 3-501.5 of the professional conduct rules that prohibits a
19
Id. at 277, 923 N.W.2d at 75.
20
See Hauptman, O’Brien v. Turco, 273 Neb. 924, 931, 735 N.W.2d 368,
374 (2007) (emphasis supplied), quoting Restatement (Third) of the Law
Governing Lawyers § 42(2) (2000).
21
Hauptman, O’Brien, supra note 20, 273 Neb. at 932, 735 N.W.2d at 374.
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lawyer from making an agreement for, charging, or collecting
an unreasonable fee.
[9] But, as we pointed out in Black, statutory “reason-
able” attorney fees taxed as costs do not go directly to the
attorney. 22 The award of fees for an unsuccessful appeal by
an employer in a workers’ compensation case is “for the ben-
efit of the claimant employee.” 23 Within constitutional limits,
the Legislature is free to set statutory attorney fees under
the Nebraska Workers’ Compensation Act in any amount it
deems fit to further the public policy of the act. Attorney
fees under § 48-125(4)(b) shall be allowed in an amount that
is reasonable. That determination depends on the extent and
value of services provided and is not dependent upon a fee
agreement.
[10] We find that the affidavit submitted on Sellers’ behalf
contains sufficient justification of the extent and value of the
attorney services provided on appeal to make a meaningful
determination of the amount of “reasonable” attorney fees
to which Sellers is entitled. In order to determine proper
and reasonable attorney fees, a court considers several fac-
tors, including the nature of the litigation, the time and labor
required, the novelty and difficulty of the questions raised, the
skill required to properly conduct the case, the responsibility
assumed, the care and diligence exhibited, the result of the
suit, the character and standing of the attorney, the customary
charges of the bar for similar services, and the general equities
of the case. 24
Sellers’ affidavit did not need to set forth a detailed log of
all tasks and the amount of time spent on each task in order
to be considered under § 2-109(F) in determining reason-
able attorney fees. The affidavit by Sellers’ attorney stated
22
See Black, supra note 7.
23
Neeman v. Otoe County, 186 Neb. 370, 376, 183 N.W.2d 269, 273 (1971).
24
See, Pan v. IOC Realty Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018);
Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015).
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the total number of hours and the applicable rate, and it
presented an expert opinion that both were reasonable. The
attorney noted a couple of tasks performed and stated that the
number of hours claimed had been carefully logged in his law
firm’s business records.
We also note that the evidence supporting a meaningful
determination of reasonable attorney fees on appeal is not lim-
ited to the affidavit required under § 2-109(F). It also includes
the court’s general experience in matters of litigation and what
has been produced by the attorney for the appellate court’s
direct consumption. 25
The Court of Appeals abused its discretion in concluding
that it could not meaningfully determine a “reasonable attor-
ney’s fee” pursuant to § 48-125(4)(b), because Sellers’ affi-
davit failed to adequately “justify” one. We reverse the denial
of Seller’s motion for appellate attorney fees and remand the
matter with directions for the Court of Appeals to determine
the amount of reasonable attorney fees. Nothing in this opinion
should be read as expressing an opinion as to what the amount
of attorney fees should be.
CONCLUSION
For the foregoing reasons, we reverse the judgment and
remand the matter to the Court of Appeals with directions.
Reversed and remanded with directions.
25
See, e.g., Rinderknecht v. Rinderknecht, 204 Neb. 648, 284 N.W.2d 569
(1979); Lippincott v. Lippincott, 152 Neb. 374, 41 N.W.2d 232 (1950);
Specht v. Specht, 148 Neb. 325, 27 N.W.2d 390 (1947); Yost v. Yost, 143
Neb. 80, 8 N.W.2d 686 (1943).